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Case:
Court of Appeal of Hamburg, NJW 1988, 737
Date:
21 May 1987
Judges:
Professor Basil Markesinis Always on the Same Path’ Essays on Foreign Law and Comparative Methodology , Hart Publishing 2001.
Copyright:
Raymond Youngs

Facts:

The plaintiff claims damages for immaterial harm resulting from a headline in the defendant’s national daily newspaper. The Landgericht allowed the claim in part. The plaintiff’s appeal was allowed in part, and the defendant’s appeal was dismissed.

Reasons:

I. The defendant is guilty of a culpable invasion of the plaintiff’s right of personality (§ 823 I BGB).

1. The principal invasion of the plaintiff’s right consists in the fact that the main headline in the 19 May 1986 issue of the defendant’s newspaper B was so drafted as to suggest that the plaintiff would accept or had accepted DM 80,000 in return for being portrayed in the nude. This would be the impression received by any reader of this number of the newspaper who did not go on to read the full text of the article on the front page. The Landgericht was right to state that such readers would be very numerous. Headlines in this newspaper are set up in order to stimulate interest and curiosity about the article in question and induce readers to buy the paper. That is clear from the layout in this issue. The main headline can be read from quite a distance and can therefore be taken in by a person seeing the paper on a news-stand or being read by someone else.

The front page is so laid out that the reader learns the truth very gradually. The words ‘K Nude—DM 80,000’ were readable from a great distance. Persons closer-to could see the text ‘K Nude. She wants DM 80,000.’ Adjoining the headline is a coloured picture of the plaintiff unclad down to the bosom; only closer inspection reveals this to be a drawing. Below the picture one sees, in somewhat larger letters, the words ‘No smile, the cool look—K in the P-Calendar’. Even this does not tell the reader that there was no question of the plaintiff seeking a fee for publicity. The reader is throughout led to believe what the headline suggests. Only when the small print begins does the reader learn the truth, and then only if close enough to read it. The great majority of those unable to read this small print, especially those who do not buy the paper, will conclude to the discredit of the plaintiff that she was ready for a fee to display her body in the nude, partly because of what they have read, but partly also because they expect sensations from the B newspaper. Most readers will never learn the unsensational fact of the matter, namely that the plaintiff was actually claiming damages for having been so portrayed.

Even those who read the text below the drawing would have the same impression, for in the main they would conclude that the plaintiff allowed herself to be portrayed in the nude in the P-Calendar and was now demanding a fee for it. It is quite unlikely that anyone who did not have the paper in his hands would read the full text on page one and appreciate the truth of the matter, which was revealed only in its final sentence.

2. As drafted—and the defendant is responsible for its drafting—the headline invaded the rights of the plaintiff. It is true that any newspaper report is capable of being misunderstood by a cursory reader or of giving rise to false inferences. That is why this court has decided that one must put up with such negative reactions if a press report is accurate and not misleading; on a balancing of the interests involved, such invasions of the personality are not unlawful, for it would constitute a grave constraint on the basic right of freedom of the press if publishers were held responsible for misinterpretations which are, after all, hardly foreseeable. This applies particularly to readers who simply go by the titles of articles in the middle of a paper or journal and pay no heed to the text; the press need not concern itself with such cursory readers.
But it is different when headlines on the front page are calculated to excite the interest of people with no mind to read anything else in the paper, such as those who are wondering whether to buy the paper or glancing at a copy read by someone else in a train or a bus. Such a headline must be considered on its own, independently of the body of the article it heralds, for it can be foreseen that it will often be read cursorily in this way, and the press must certainly strive to avoid recognisable risks of likely misunderstandings, as indeed this court had already said. That is the case here. 3. The defendant was at fault. There was an obvious risk that the mention of the well-known plaintiff’s name in conjunction with the idea of nudity and a sum of money would conjure up derogatory assumptions affecting her right of personality. Yet gravely at fault though the responsible editors were, it is not established with sufficient certainty that they deliberately intended to cause the harm.

II. An award of damages for pain and suffering (Schmerzensgeld) is justified in this case.

1. The Bundesgerichtshof has always held that even where there has been an unlawful and culpable invasion of the right of personality, the victim can claim money damages for immaterial harm only when the gravity of the invasion makes such a solatium absolutely necessary. Whether such an invasion is sufficiently grave depends on all the facts of the case, including the seriousness and intrusiveness of the invasion, the dissemination of the publication, the duration of the harm to the victim’s interests and reputation, the nature of and reasons for the defendant’s conduct and the degree to which he was to blame.

2. Given the very wide circulation of the B newspaper, the headline must have been taken in by a very large number of people who read no further. Thus the misapprehension we have indicated must have been very widely disseminated. The harm to the plaintiff’s reputation as a public figure well-known at home and abroad was grave and longlasting, and her name in the leading headline of the B paper, which would immediately command attention, placed her in a context highly prejudicial to her honour as a woman, diminished her seriousness as a politician and reduced her standing as a public figure. Apart from this, what was published in the B newspaper was not independently defamatory: it was the way the front page was laid out which induced the false impression of what the article went on to state.

The wrong was not, however, as great as might be expected from publication in the B newspaper, for anyone who read the whole of the front page would learn the truth of the matter.

The informational value of the fact that the plaintiff was claiming damages from P cannot be invoked here, for it was trivial. This fact could have been communicated quite licitly without infringing the plaintiff’s rights at all, but the fact that the infringement might have been avoided does not mitigate the infringement which occurred. It is, on the other hand, relevant that the B newspaper did publish a correction on the front page of its edition of 24 July 1986. This certainly amounts to an attempt to allay the consequences so far as those who were misinformed by the headline are concerned, but it cannot be said that it significantly diminished, much less neutralised, the effect of the publication in invading the plaintiff’s rights: the correction was published in an unobtrusive manner which had none of the dramatic effect of the original publication, and in any case it can have reached only B’s regular readers, and not the many other people who were affected by the original invasion of the plaintiff’s right of personality.

III. The appropriate sum to award by way of solatium is DM 10,000. The proven defamation is a weighty one, which set the plaintiff as a woman and well-known public person in a most degrading light. Those who read the headline and not the full article were left with the impression that the plaintiff was ready to let herself be portrayed in the nude for a fee—an impression quite at variance with the public esteem in which the plaintiff was held. This was calculated to do lasting harm to the plaintiff’s reputation and standing. This needs no elucidation. It is equally obvious that because the plaintiff is a prominent politician, the adverse effect on her is much greater than it would be on a simple citizen known only to a few intimates. Finally, one must remember that those who drafted the headline must have been aware, had they been taking the proper care, of the grave risk of invading the plaintiff’s right of personality. On the other hand, this invasion was not the result of a report which was actually false, as we have said above, and this also must be taken into account in determining the amount of solatium. Given that in this case the true facts were given to those who read the newspaper, the invasion was not as serious as it would have been had it resulted from false statements in both the headline and the text. Further, the defendant’s published correction went some way towards reducing the damage. Taking all these points into consideration, we must say that the sum awarded by the Landgericht does not seem adequate compensation for the way the plaintiff’s right of personality has been infringed. On the other hand, the plaintiff’s demand for at least DM 30,000 does not seem appropriate on the facts of this case.

Note:

The German law of privacy may well prove to be of great use to practitioners as they strive to develop the English law under the impetus of the Human Rights Act 1999. The utility of German law lies not only in its richness, but also in the careful way in which German courts have balanced on ad hoc basis the competing interests of privacy and speech. This has not led to a flood of litigation nor to any real or perceived restriction of speech rights. The development of the law in Germany is also the product of the courts and is only minimally based on the Code or statutory provisions so it is both comprehensible and transplantable into English law. Finally, the growth of German material in English means, as Lord Wilberforce recently put it, that "the argument of non-availability no longer holds". Further down in the same text Lord Wilberforce, one of England's most erudite judges, added: "The German approach shows us the way, avoiding the brutal simplicity of the First Amendment, to work out a balance between the right of free speech and the right of privacy..." These remarks come from his Foreword to Professor Basil Markesinis' Always on the Same Path. Essays on Foreign Law and Comparative Methodology, vol. II, Hart Publishing (2001), where one can find a comparative presentation of German law in chapters 7, 8, and 11. More information on such topics as the privacy of public figures can be found in Markesinis, Foreign Law and Comparative Methodology: A Subject and a Thesis, Hart Publishing (1997) chapters 17, 18, and 19. The Law of privacy in England, France, Germany and Italy is also discussed (and rich further references frequently given) in chapters 1, 2, 3, 4, 5, and 7 of Protecting Privacy, (ed. by Basil S. Markesinis) OUP (1999). The cases reproduced in this site are annotated in B. S. Markesinis. The German Law of Obligations, vol. II, The Law of Torts: A Comparative Introduction, 4th edition by Hart Publishing (forthcoming in 2002).

 

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